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One-Sided License Plates

By Michael Frisch

The United States Court of Appeals for the Fourth Circuit has agreed that North Carolina may issue “pro-life” license plates without offering a “pro-choice” alternative.

The court majority rejected the ACLU’s arguments

North Carolina operates a specialty license plate program that offers, inter alia, a “Choose Life” plate, but the State has repeatedly rejected efforts to include a pro-choice license plate. The ACLU and several vehicle owners brought this action alleging that the State violated the First and Fourteenth Amendments by refusing to offer a pro-choice license plate. The district court granted summary judgment in favor of the plaintiffs and issued an injunction prohibiting the State from issuing “Choose Life” plates without also offering a pro-choice plate…

 The specialty license plate program at issue here is substantively indistinguishable from that in Walker, and the Walker Court’s analysis is dispositive of the issues in this case. Accordingly, we now conclude that specialty license plates issued under North Carolina’s program amount to government speech and that North Carolina is therefore free to reject license plate designs that convey messages with which it disagrees. See Walker, 135 S. Ct. at 2245 (“When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”). We therefore reverse the district court’s grant of summary judgment in favor of the plaintiffs and remand with instructions that the district court enter judgment in favor of the defendants.

Judge Wynn dissented

North Carolina invited its vehicle owners to “[m]ake a statement” and “promote themselves and/or their causes”—but only if they were on the government’s side of a highly divisive political issue. This, North Carolina may not do. Because the specialty plate speech at issue is not pure government speech, North Carolina’s allowing a “Choose Life” plate while rejecting a pro-choice plate constitutes viewpoint discrimination in violation of the First Amendment. For this reason, I would affirm the district court’s ruling in Plaintiffs’ favor and must respectfully dissent.

(Mike Frisch)